High Court · 2025 on 15 Jul 2025

Judgment

1. Heard Shri Arunendra Nath Mishra, learned counsel for the appellant, learned A.G.A. for the State and perused the record.

2. The instant Criminal Appeal under Section 374(2) Cr.P.C. has been filed by the appellants, namely, Salamtulla & Mohd. Umar both sons of Khamsey, Yaseen s/o Mummun Sher, Babbey alias Rizwan s/o Ali Jaan and Chhutakkey alias Yaseen s/o Vilayat, all resident of Village- Bakhariya, District- Hardoi, challenging the judgment and order 25.07.2008 passed by the learned Additional Sessions Judge/Fast Track Court No.4, Hardoi in S.T. No.176 of 2007, arising out of Case Crime No.761 of 2006, P.S.- Pihani, District- Hardoi, convicting and sentencing the appellants to undergo one year imprisonment with fine of Rs.250/- under Section 147 I.P.C. and in default of payment of fine to undergo further imprisonment of 15 days; to further undergo one year imprisonment with a fine of Rs.250/- each under Section 504 I.P.C. and in default of payment of fine to undergo further imprisonment of 15 days; to further undergo one year imprisonment with a fine of Rs.200/- under Section 323/149 I.P.C. and in default of payment of fine to undergo further imprisonment of 15 days; to further undergo one year imprisonment with a fine of Rs.500/- each under Section 435 IPC and in default of payment of fine to undergo further Page No.2 of 22 imprisonment of one month; to further undergo imprisonment of six years each with a fine of Rs.2000/- each under Section 304/149 I.P.C. and in default of payment of fine to undergo further imprisonment of three months. All the sentences were ordered to run concurrently.

3. The case of the prosecution, in nutshell, is that on the date of incident, while the complainant was sitting at his door along with his father, the accused persons armed with deadly weapons arrived there and started abusing in filthy languages in relation to a dispute related to dunghill/scrap heap (घूरा). On being opposed, the accused persons started beating the complainant as well as his father.

On the basis of written report, submitted by the first informant, the first information report was lodged as Case Crime No.761 of 2006, under Sections 147, 323, 324, 504/436 I.P.C., Police Station Pihani, District Hardoi.

5. The Investigating Officer during investigation visited the place of occurrence and prepared the site plan and even recorded the statement of witnesses and after completing the investigation submitted the charge sheet against the accused under Sections 147, 323, 324, 504, 308, 304, 436 I.P.C.

6. After submission of charge sheet before the Court of learned Magistrate the said case was committed to the Court of Session wherein it was registered as S.T. No.176 of 2007. After committal, the trial court framed charges against the accused namely Salamtulla, Mohd. Umar, Kamlakant, Chhutakkey @ Yaseen, Babbey @ Rizwan under section 147, 504, 323, 149, 324/149, 435, 308/149, 304/149 I.P.C., wherein the accused/appellant denied the charges levelled against him and claimed trial. Page No.3 of 22

7. To establish/prove the case, the prosecution examined as many as ten witnesses, namely, injured-informant/Radheyshyam (P.W.1), injured-Bhojpal (P.W.2), injured-Raghunath (P.W.3), Dr. Satendra Vikram Singh (P.W.4), Laljeet (P.W.5), S.O. Wajmul Hasan (P.W.6), S.I. J.P. Pandey (P.W.7), S.I. Brijesh Singh (P.W.8), S.I. Anil Kumar Rai (P.W.9) and Dr. I.P. Gupta (P.W.10), who proved the post mortem report of the deceased.

8. That after closing of the evidence, statements of accused/ appellants under Section 313 Cr.P.C. was recorded by the trial court, after explaining the entire evidence and other circumstances, in which the appellants denied the prosecution story and the entire prosecution story was said to be wrong and concocted. The accused in order to substantiate their case adduced two witnesses, namely, Dr. Vinod Kumar Gupta (D.W.1) and Head Constable Laljee (D.W.2).

9. Thereafter, the learned trial court, after considering the material brought on record and appreciating the entire evidence, i.e. oral as well as documentary passed the judgment of conviction and awarded sentence as indicated above.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused/appellants have preferred the present appeal.

11. It is to be indicated that in the Criminal Appeal No.1899 of 2008 filed by co-accused Teeka, Co-ordinate Bench of this Court vide judgment and order dated 31.01.2024 provided the benefits of the Probation of Offenders Act, 1958. The relevant portion of the same is extracted hereinunder. "31. In the light of the above discussion, as far as it relates with the conviction of the appellant Teeka is maintained but the sentence is modified. Instead of sending the appellant Teeka to jail, he is given benefit of Section 4 of The Probation of Offenders Act, 1958 and he is directed to file two sureties each to the tune of Rs 20,000/- along with his personal bonds before Page No.4 of 22 District Probation Officer concerned and also an undertaking to the effect that he shall maintain peace and good behaviour during the period of one year from today. The said bonds are to be filed by the appellant Teeka within a period of three months from the date of this judgment."

12. Learned counsel for the appellants submits that the accused- appellants have not been convicted previously for any offence and they are the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining submission in the appeal only with respect to the order of sentence.

13. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellants have not been convicted previously for any offence, the trial court ought to have acquitted the appellants for the offence mentioned above and invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958') and in not doing so, the trial court erred in law and fact both.

14. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellants. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

15. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

16. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons Page No.5 of 22 for not applying the beneficial provision in case the accused offender otherwise is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958.

17. The accused-appellants have statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 1958 and the learned Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act, 1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the learned Trial Court should have recorded reasons for the same.

18. Learned counsel for the appellants submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) is also applicable in the State of Uttar Pradesh as held by Hon'ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

19. Learned counsel for the appellants further submitted that he does not want to press the appeal on merits. He has submitted that the incident took place 19 years ago and there is no further criminal antecedent of the appellants. The delay in trial deprives the right of the appellants of speedy trial and they may be given benefit of first offender and they may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellants are first time offender and are not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellants. Page No.6 of 22

20. Learned counsel for the appellants further submits that similarly situated co-accused Teeka has been granted the benefit of Section 4 of the Act 1958 by this Court vide order dated

31.01.2024 passed in Criminal Appeal No.1899 of 2008.

21. Learned A.G.A., on the other hand, opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellants have been rightly convicted.

22. Learned A.G.A. appearing for the State, however, does not dispute the fact that accused-appellants are the first time offender and were not previously convicted in any other case. He also submits that in view of the expressed provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-appellants and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case.

23. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused-appellants on certain stipulations as specified in Section 4 of the Act of 1958.

24. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court finds that except apart the merits of the case, so far as the prayer of learned counsel for the appellants for providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard.

25. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: "3. Power of court to release certain offenders after admonition.- "Where any person is found guilty of having committed an offence punishable under Section 379 or Page No.7 of 22 Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.-For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4.

4. Power of Court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond."

26. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:- "4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than Page No.8 of 22 to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act."

27. Further, the Hon'ble Supreme Court in the case of Ved Prakash